2/18 David Bornstein

Carole Petersen

Rights in China & Hong Kong

HEFFNER: I’m Alexander Heffner, your host on The Open Mind. Last year we were honored to welcome to this broadcast President Obama’s sister, Maya Soetoro-Ng of the University of Hawaii, founder of the Seeds of Peace Education Initiative. And we’re delighted today to resume the conversation on contemporary peace building with Carole Petersen, Maya’s colleague, professor at the William Richardson School of Law, and Director of the Matsunaga Institute for Peace and Conflict Resolution. An international human rights expert who champions free expression, Petersen directed University of Hong Kong’s Center for Public Law, where she helped draft legislation to prohibit discrimination in the workforce. And so today, we turn our attention to free expression. Specifically academic freedom, from the American college campus to the Asia-Pacific region. This summer, Hong Kong’s political magazine editors were jailed for running illegal business, the South China Morning Post reported. This after a string of booksellers were also arrested earlier this year. And I thought we’d begin, Carole, welcome. You’ve come a long way from uh, Hong Kong and Hawaii.

PETERSEN: Thank you.

HEFFNER: So we’re eager to hear your insights today. How precarious do you think free speech is right now in China mainland but also Hong Kong specifically?

PETERSEN: All right well first I do want to clarify that those arrests were in China…

HEFFNER: Right.

PETERSEN: They were not in Hong Kong. Uh, but that is the precarious situation, uh, not all of your listeners may be aware, but Hong Kong is a special administrative region of China. It was a British colony until 1997. And when Hong Kong was reunified with China, it was under solemn promises made in the Sino-British Joint Declaration, which is a bilateral treaty duly registered with the United Nations. The Chinese government promised that Hong Kong people would continue to enjoy all the civil liberties that they enjoyed as a British colony, including freedom of expression. And we’re now about two decades in. Um, and the Chinese government promised there would be no changes to the basic policies for at least 50 years. We’re two decades into that 50 years and it’s been a terrible year. Uh, very frightening. And the most frightening, uh, episode was the disappearance of the booksellers. These individuals simply disappeared, one, two from China, one disappeared while he was in Thailand, and then Lee Bo actually disappeared from Hong Kong. Now mainland Chinese have, the authorities in mainland China have no authority to act in Hong Kong. It’s, there’s an immigration wall between the two. And it’s only the Hong Kong police who have the right to enforce laws in Hong Kong. Lee Bo disappeared. It’s widely believed that he was kidnapped by agents from mainland China. He has now been released. He’s back in Hong Kong and he’s refusing to explain how he got to mainland China. It’s clear that he’s been frightened. And there was a, there have been televised confessions in China, a promise to never again sell books that are banned in China. And it’s a complete change from the legal regime that we had in Hong Kong and that was in fact promised to the Hong Kong people. So I would say it’s very precarious. We’ve had other episodes in the last year that have intimidated academics in Hong Kong as well and in 2006, um, my co-authors and I did a study of academic freedom in Hong Kong. And we concluded that there had been challenges but by and large, academic freedom was still being protected. Ten years later, I could not say the same thing.

HEFFNER: Do you attribute this to a gradual intimidation on the part of China among citizens of Hong Kong?

PETERSEN: I think it’s a very complex situation. Um, early on in the resumption of sovereignty, there were some challenges to freedom of expression. Uh, one challenge had to do with flag desecration law. For the most part, mainland Chinese law does not apply in Hong Kong. But there is a provision under Hong Kong’s basic law where the, certain laws from mainland China can be applied in Hong Kong and one of the few laws that was applied was the law prohibiting desecration of the national flag. This is the first time that sort of thing had been prohibited in Hong Kong. And one of our activists went out, immediately desecrated the Chinese national flag and marched down through the streets, and he was prosecuted. And presented a very difficult case for the Hong Kong courts, ‘cause the Hong Kong courts are independent, they’re not part of the mainland Chinese legal system. They still apply the common law. And the magistrate’s court convicted him. The court of appeals struck down the law as unconstitutional and cited actually US laws prohibiting, uh, laws prohibiting flag desecration as an infringement of freedom of expression. Hong Kong’s court of final appeal was in a very, very difficult position, um, because they know that the National People’s Congress Standing Committee does have the power to interpret basic law provisions as well. And so the Court of Final Appeal issued a ruling saying that the law prohibiting flag desecration was barely constitutional, and they were very clear about saying the International Covenant on Civil and Political Rights still applies in Hong Kong. You have freedom of expression. You can say anything you want about China. But you can’t criticize China in this one particular way, desecrating the national flag. And I think the Court of Final Appeal felt that that was acceptable partly because there are many democracies in the world that prohibit flag desecration. It was a close case even in the United States. But for the most part, we have seen interference from China come in I would say incremental fashion, like that. There will be little challenges like that and then the Hong Kong people will push back and then we’ll have some kind of resolution. Another big challenge was in 2003 when the central government wanted the Hong Kong legislative council to pass laws that they said were necessary to protect national security. And it would have criminalized things like secession, subversion, theft of state secrets in Hong Kong. 700,000 people took to the streets on July 1st, 2003, and the bill was withdrawn. And so we’ve been going back and forth like that and normally, the Hong Kong people are very vigilant about protecting their rights. And in most cases, when there has been this sort of large-scale protest, the mainland Chinese authorities have backed down. What changed things in my opinion, um, was Occupy Central in 2014. And Occupy Central was about the demand of the Hong Kong people to be able to elect their own chief executive. Because right now the legislative council is half elected from geographic constituencies but the chief executive is appointed by the central government upon an election by a little selection committee, it’s not democratic at all. Occupy Central did frighten, I think, mainland China, the mainland Chinese government, because the students were able to stop traffic in central Hong Kong for several months. And although…

HEFFNER: And that stung economically?

PETERSEN: It’s…

HEFFNER: Or was it more of a law and order question?

PETERSEN: It’s, I don’t think it’s either one, actually. Um, the Hong Kong economy has done fine. Some people actually said Occupy Central was great because we had less air pollution in Hong Kong. You could walk through the streets. It was very peaceful, very well-organized by the students. Um, no violence at all really except for a few clashes early on with the police. But what scared the mainland Chinese government in my opinion is they know that they cannot keep other activist groups in other parts of mainland China from watching this. And if the central government in China were seen as giving in even one inch to Occupy Central, then they might be afraid that they would inspire other movements in other parts of China. So the Chinese government has been very firm. Um, they issued in August 2014, a, a decision which essentially ruled out any sort of genuine choice in an election for Chief Executive. The decision said yes, you can have universal suffrage and you can all vote for who will be Chief Executive, but you only get to choose from two or three candidates who have been approved by a nominated committee, and that’s what led to Occupy Central and, and the Umbrella Movement. The students responded very angrily to this because they had been promised years earlier that they would be able to elect their Chief Executive, and they felt that this was basically going back on the promise.

So I think this, the Occupy Central movement has brought things to a new state of genuine crisis in Hong Kong. There are a lot of people who have lost all faith in the one country, two systems model, and they feel that they were really sold out by the British and that they should have instead been given the right to choose their political future.

HEFFNER: They have in fairness built some democratic capital, if you will.

PETERSEN: Yes, yes, absolutely. Um, what I think the Hong Kong people were promised and deserve is what we call in international law internal self-determination. External self-determination means independence and, and that is very rare that any people is given that, because in international law we take the right to territorial integrity very seriously. But the people were promised essentially internal self-determination, meaning that you should be able to have your own legal system, and while China will be responsible for your defense and foreign affairs, you will essentially run your own territory.

With the traditions and what Hong Kong people call our core values, there’s a lot of discussion of that now, of protecting Hong Kong’s core values, meaning freedom of expression, freedom of religion, freedom of association, freedom of assembly, freedom from corruption. I mean Hong Kong has a very strong tradition since the 1970s of fighting corruption and it’s considered, has been considered one of the cleanest jurisdictions in all of Asia, contrast that with mainland China where corruption is a major problem.

People now feel that there’s been some political interference recently with the um, investigations by the Independent Commission Against Corruption. So people in Hong Kong now feel that there’s, politics is coming into that as well. So they essentially feel that many of the promises that were made in the Sino-British Joint Declaration have been broken. And I think it’s time for the international community to, to hold China accountable for this, because if China’s promises and treaties don’t mean anything, then other countries should be reluctant to deal with China.

HEFFNER: Well that’s exactly the point. I think that there has been a deficit of vocal states, um, who are championing the rights of those in Hong Kong. From where do you think there may be inspiration towards that cause? In other words, um, if there is going to be effective influence on China, where is that going to come from?

PETERSEN: Well, turning to the example of academic freedom which is one area I’ve been writing on, a, a lot of American universities have programs with China. Some universities even operate campuses in China. They have joint programs with China. I think American universities need to be more vigilant, um, about who they’re dealing with. And they should be very firm that they’re not going to enable the Chinese government to interfere with academic freedom and freedom of expression. That’s one way. Um, one of the things I try to remind people about with respect to Hong Kong is that we do pour a lot of money into rule of law programs all over the world, right? Um, the American Bar Association likes to go to China and promote rule of law training. But one of the things I remind them about is that there is a territory in China that has had rule of law for decades. It’s equally important that you use your political capital and your influence to try to help the people who are protecting rule of law and civil liberties in Hong Kong rather than just focusing on the someday, that maybe someday we’ll persuade the central government of China to pro—embrace rule of law in the mainland. Let’s at least make sure that we don’t lose ground in Hong Kong. Hong Kong’s been a very important center of commerce and business. Many Americans live in Hong Kong. We’ve benefited a lot from Hong Kong and I think the people of Hong Kong deserve our support.

HEFFNER: A lot of people during this political season, uh, forgot the audacity to borrow a word from President Obama, of Hillary Clinton standing in China and saying human rights are women’s rights, women rights are human rights. Um, there seems to be, to borrow from Bernie Sanders, some amnesia. Uh, but not only did she have courage to say that there, uh, she might have been one of the last elected officials to actually attempt to do that there. Not, it doesn’t appear that that much has changed in the two decades since she conveyed those words.

PETERSEN: I agree, and I’m glad you raised that speech. I was actually at the conference in Beijing in 1995 because I was a member of the Hong Kong Association of Business and Professional Women which was an acredited NGO with the, with um, the UN. And so when Hillary Clinton gave that speech, I was sitting outside on the floor with a lot of other women watching it on the video and I also had the honor of hearing her speak at another seminar on microfinancing at that conference. She was very brave and she really had a huge impact. A lot of people were just expecting some kind of fluffy speech and instead it was hard-hitting and it did not shy away from the issues, not only violations of women’s rights in China but all over the world. It was very, very important and I, I agree with you that sometimes it appears that international leaders now are very reluctant to criticize the Chinese government because of their economic power. And when you see the influence that China has not only in Asia but in places like Africa where they’re investing a great deal of money, it is quite worrying and once again though, I have to remind everyone that if you don’t stand up to that kind of abuse of human rights and even that sort of abuse of simple principles of good governance and clean government, you’re gonna be stuck with what you’ve encouraged. And I think it’s important that we do speak truth to power. And that is what the students were doing in Occupy Central, I really admire them for that.

HEFFNER: Are students enabled to posture, position themselves that way in mainland China?

PETERSEN: No.

HEFFNER: Not at all, right, so when Maya was here we together brainstormed a blueprint for conflict resolution to be integrated into curricula. So extending ourselves to that area of your work at um, the Center and the Institute, do you think in China there is not an openness to it because the cultural norms have just never been instituted in a way to, to work in China?

PETERSEN: I think it has more to do with the fact that China’s ruled by, it’s a one-party state. And if you are a one-party state, you, if you’re the government…

HEFFNER: You censor…

PETERSEN: You censor because you don’t want to allow open criticism. And that has become more of a problem recently under Xi Jinping’s rule. Uh, five years ago, I was more optimistic about China, and that was partly because I sometimes travel to China, um, with some of the Nordic human rights institutions, because they had training programs on human rights law in western China. And I went to Inner Mongolia, I went to other provinces, and lectured on human rights to professors who were developing human rights courses in their own universities, in their law schools. There al—there also was at that time a growing group of human rights lawyers in China. Now, they weren’t taking up any cases that would directly challenge the Communist Party’s right to rule, but they were taking up cases that were very important to people’s wellbeing, for example cases of disability discrimination. Um, cases brought by the families of children, babies who were poisoned when the plastic was put into milk powder, into baby formula. So the, that kind of case was being litigated, frankly a lot of those lawyers are now behind bars in China. There’s been a crackdown in the last year that is very frightening, and it may well be that that crackdown is also connected to the crackdown in Hong Kong. Because even though there is an immigration border between Hong Kong and mainland China, activists and NGOs often find ways to transcend that border. They go across for conferences, they read each other’s materials, NGOs sometimes meet together. I think there was a perception perhaps in mainland China that some of the NGOs and the lawyers in mainland China were learning a little too much from the human rights lawyers and the academics and the NGOs in Hong Kong. And so I think it’s, it’s a concerted effort to clamp down on anything that might be seen as a potential challenge to one-party rule.

HEFFNER: Who in the Chinese government looks at a one-party system and thinks that’s uncivil?

PETERSEN: If there is that view among Chinese leaders, they’re not articulating it right now, not in the current climate in mainland China. Again, it’s very different in Hong Kong. In Hong Kong we have lots of political parties. Um, it’s hard to keep track of them, there are so many. We have to refer to them as the pan-democrats, all the different parties that support democracy, and then the loyalists, the different parties that tend to support the government. But any…

HEFFNER: But ultimately as that stranglehold or whatever you want to call it…

PETERSEN: Right.

HEFFNER: Becomes firmer, it is China who we have to look to for reform. Or potential reform.

PETERSEN: Well that’s the hope. One, and I think that when one country, two systems was first proposed to the people of Hong Kong, remember that was the early 80s, that was before the Tiananmen Square massacre occurred, I think a lot of people thought that China was modernizing and that eventually there would be more political freedom, right? There certainly is more freedom in China now than there was say in the 1970s, right? So we do know that. So I think there was cause for op—optimism at that time. Uh, the problem with the one-party system is that it is one party and if the leader of that one party makes the decision that I’m feeling threatened, and I do think the Chinese leadership does feel threatened right now, partly because their main claim to legitimacy was the economic development, right?

Economic development is slowing in China, there’s no question about that. And so when you are an unelected government without political legitimacy and your economic plans are not going as well as they were, then you seek out other claims to legitimacy. Nationalism, acquiring, creating new islands in the South China Sea, um, and making sure that there’s no threat to your territorial integrity, right? And to be honest, nationalism is real in China. I mean there are many people who oppose the Chinese Communist Party but can’t say so openly, but there are also people who support it. Who believe that it has made China strong again. So it’s a complicated question.

HEFFNER: Right. Where do, um, universities now play a role in potentially providing some of the democratic legitimacy to the academic process?

PETERSEN: I think what American universities can do is try as much as possible to support academics in Hong Kong where they are definitely practicing academic freedom but experiencing more threats. And they can welcome scholars from mainland China. Um, there are a lot of scholars from mainland China who have left who are here in, in the United States either visiting or permanently because they can’t go home. Scholars at Risk often host scholars from mainland China. And to the extent that universities in the United States are going to have joint programs or in some cases even local campuses in China, I do think they have to spell out very clearly in their agreements their commitment to academic freedom, because otherwise the education they’re offering the students in China isn’t really an American education if it doesn’t have civil discourse, an open mind, um, access to a wide range of reading materials. And in some cases that might mean losing some opportunities. And often American universities are looking to China for financial, uh, benefits, so one has to be prepared to give up those financial benefits if it means compromising on your core values of academic freedom.

HEFFNER: In what circumstances do you envision a more democratic China?

PETERSEN: Not in my lifetime, I don’t think. I don’t think it will happen. I, I wish I could be more optimistic, but at this point in time, I don’t see the Chinese Communist Party giving up its grip on power and I don’t see a non-violent movement that could succeed in transforming China from a one-party state to a multi-party democracy. I do hope however that the Chinese Communist Party will at least soften its stance in the next 10, 20 years and go back to what we were seeing in the early 80s before the Tiananmen Square incident and even to some extent in the nine—in the late 90s. Um, a willingness to embrace rule of law, to allow the development of an independent legal profession. I’m not going to say independent judiciary because I think that’s too far down the track in China but at least an independent legal profession where the lawyers can make arguments for their clients without being afraid of being locked up next to their client the next day.

HEFFNER: Right.

PETERSEN: Um, so my hope is that China will become at least a little less authoritarian and more committed to rule of law. It’s a modest hope and I’m not at this moment that optimistic about it, which is why I think it’s so important for the international community to hold China accountable, particularly for the promises that it made in the joint declaration regarding Hong Kong’s autonomy.

HEFFNER: I was saying to you that Shaun Rein, a businessperson in China who does a lot of work in Hong Kong, wrote a book “The End of Cheap China” that was anticipating from the Occupy movement that you described a, a kind of crossroads or crisis but maybe an explosion of violence and moving towards a realization of that autonomy as one system, one country.

PETERSEN: It’s entirely possible. It’s a very frightening time and although I supported the students when they were in the streets during Occupy Central, I was, I was there for a couple of weeks in October 2014, I do feel Occupy Central was probably a mistake and I said that to Benny Tai, my former colleague who was the inspiration for Occupy Central. Uh, I think it was too confrontational, and it’s better to take a conflict resolution approach with the Chinese government. Once you push the Chinese government too far into the corner, they will push back. And the Chinese government also doesn’t understand conflict resolution in my opinion because they don’t realize that when they crack down and start interfering more in Hong Kong as they’ve done this year, then the people become more…

HEFFNER: So how do you model civility and protesting so that there is receptiveness on the part of mainland China?

PETERSEN: I think Occupy Central should have been a one-day protest, maybe one week. But I think it was a mistake to occupy Hong Kong permanent, on a semi-permanent basis for months downtown. Because it was essentially saying to the Chinese government we’re taking the downtown of Hong Kong hostage until you give us democracy. Well, what authoritarian state is going to say yes to that? We’re lucky that no tanks came in. The Hong Kong government I think did a good job of saying to the Chinese government we can manage this, no Chinese soldiers from across the border came in. There are Chinese soldiers stationed in, in a, in a fort in Stanley in Hong Kong but they never came out of their barracks. It was all dealt with by the local security and it was peaceful, by and large. Very peaceful, actually. But I think it’s a mistake what Benny Tai’s mistake was was that he said we’re going to Occupy Central until we get democracy. And that was too strong of a demand in my opinion. That being said, China has just ratcheted it up even more. It’s almost like you, you want to get them together at a table in a conflict resolution approach and say it’s not in either Hong Kong’s interest or the Chinese Community Party’s interest for Hong Kong to blow up. I mean it will only make Taiwan sit back and fold its arms and say see, that’s why we will never accept one country, two systems and we will never voluntarily reunify with China. So it’s not in China’s interest to destroy Hong Kong, but at this moment it seems hell-bent on doing so.

HEFFNER: I can’t do this now but to be continued because next time I want to ask you what that conflict resolution approach entails exactly, Carole, I appreciate you being here with me.

PETERSEN: Thank you very much, it was a pleasure.

HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at thirteen.org/openmind to view this program online or to access over 1,500 other interviews. And do check us out on Twitter and Facebook @Open MindTV for updates on future programming.